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270 Chapter 16
with one minor difference — to the six stages just discussed. 15 As it
turns out, however, the focus of the court’s inquiry falls on the third
stage, the test for arbitrary deprivation. Not only that, but the test it
articulates is so all-encompassing as to make the other stages, and the
foreign law that might have assisted in explicating them, redundant.
I shall leave it to AJ van der Walt to point out how the FNB Court’s
approach to the interpretation of FC section 25 might be said to
approximate his own. My concern in this presentation is with the
second issue — the way in which the court’s test for arbitrary
deprivation swallows up the other stages of the constitutional
property clause inquiry.
3 FNB
FNB involved a constitutional challenge to section 114 of the Customs
and Excise Act. 16 As it was then worded, section 114 authorised the
Commissioner of the South African Revenue Service, in order to defray
a customs debt, to detain and eventually sell property ‘in the
possession or under the control of’ the customs debtor, even where
such property belonged to a third party. FNB impugned section 114
under FC section 25(2), alleging that it provided for the
uncompensated expropriation of property. On the authority of a
passage in the chapter on property in the first edition of CLoSA, 17 the
FNB Court held that expropriations are a form of deprivation, and
consequently that the impugned provision should first be tested
against FC section 25(1). 18 Dispensing quickly with an argument that
the legal form of a property right was less important than the rightholder’s
‘commercial interest’ in it, 19 the FNB Court restricted itself
to two narrow holdings in respect of the first two stages of the
inquiry: (1) that ownership of a corporeal movable, such as the motor
vehicles at issue in this case, constituted property for purposes of FC
section 25; 20 and (2) that ‘dispossessing an owner of all rights, use and
benefit to and of corporeal movable goods, is a prime example of
deprivation in both its grammatical and contextual sense’. 21
These two holdings set the stage for the primary focus of FNB: the
elaboration of the test for arbitrary deprivation. The judgment
15
The FNB Court’s analytic framework consists of an extra stage because the
general limitations stage is mentioned twice, first in respect of deprivations of
property inconsistent with FC sec 25(1), and then in respect of expropriations of
property inconsistent with FC sec 25(2) and (3).
16 Act 91 of 1964.
17 ‘Property’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1st
Edition, OS, 1996) Chapter 31.
18 FNB (n 1 above) para 57.
19 FNB (n 1 above) para 55.
20
FNB (n 1 above) para 51.
21 FNB (n 1 above) para 61.